Rahman Ullah Vs Govt of KP

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JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

MINGORA BENCH (DAR-UL-Q AZA),SWAT

(Judicial Department) W.P No. 1371- Ml2022 With Interim Relief Rahman Ullah (Petitioner) vs

Government of Khyber Pakhtunkhwa through Secretary Home and Tribal Affairs Department and others (Respondents)

Present: Mr. Ashfaq Hussain, Advocate for the petitioner.

Mr. Razauddin Khan. A.A.G for the respondents.

Date of hearing: 08.12.2022

JUDGMENT

MUHAMMAD IJAZ KHAN J.- Throu gh the instant writ petition, the petitioner has chalienged the order of respondent No. 2 dated 23.11.2022 passed under section 3 of The West Pakistan Maintenance of Public Order Ordinance, 1960 (hereinafter referred as Ordinance, 1960), whereby petitioner has been ordered to be arrested and tt 7 detained in Central Prison, Mardan for a period of one month.

2 When this petition was filed,

respondents were put to notice and the learned A.A.G was directed to produce all the relevant record with respect to the present petitioner. Today Abdul Sabooh/* (D.8.) llorl'bk }Ir.,lustict ]luhammad Nreem An]var Ilon'ble Nlr..rnstice Dluhammed Ijaz Khan

a

arguments of leamed counsel for the petitioner as well as the leamed A.A.G were heard in detail and the record though produced but all was with respect to registration of FIRs under The Khyber Pakhtunkhwa Control of Narcotic Substances Act 2019 and The Prohibition (Enforcement of Hadd) Order, 1979.

3 The impugned order dated 23J12022 states that since the petitioner is involved in drugs peddling/sale, smuggling and transportation of drugs and does not mend his behavior, which is not only creating inconvenience amongst the general public but also destroying young generation, therefore the District Magistrate/Deputy Commissioner, Dir Upper in his wisdom was pleased to issue warrant of arrest under section 3 of The West Pakistan Maintenance of Public Order Ordinance, 1960 against him and through the impugned order dated 23.11.2022, the petitioner was ordered to be taken into custody and detained in Central Prison, Mardan for a period of one month. He was accordingly arrested and detained in Central Prison, Mardan.

4 It is relevant to mention here that Ordinance, 1960 was enacted to provide a law for Abdul Sabooh/* (D.8.) Hon'ble Mr. Justice Muhammad Naeem Anwar Ilon'ble Mr. Justice Muhrmmed Ijaz Khao

preventive detention and control of persons and publications for reasons connected with public safety, public interest and the maintenance of public order. The "preamble" and Section 3 of Ordinance, 1960 are relevant, which are reproduced as under:-

"lfClmtl0.-Whereas it is expedient to amend and consolidate the law providing for preventive detention and control of persons and publications for reasons connected with public safety, public interest and the maintenance of public order in the Province of West Pakistan Baluchistan.

3.PouGl t0 rllcst rnil dotaln su$loctod m1t0[3.- (1) Government, if satisfied that with a view to p reventins anv person from actins in anv manner D re ud icial to oublic safetv or the maintenance of nublic order it necessa so to do &Y, bv an order iq writins. direct the arrest and detention in such custodv as mav be D res cribed under sub-section (7), of such person for such period as may, subject to the other provisions of this section, be specified in the order, and Governmen if satisfied that for the aforesaid reasons it is necessa rv so to do may, extend from time to time the period of such detention for a period not ex cee dins six months at a time.

Explunatio z. I---For the purposes of this section---

c i. 'dealing in the black-market' or 'hoarding' as defined in the Hoarding and Black-market Act, 1948 ;or

ii. an act of smuggling punishable under the Sea Customs Act, 1878 or the Land Customs Act, 1924 or under any other law for the time being in force, shall be deemed to be an act prejudicial to the maintenance of Public order. Exp lanations. 1/---Whoever is or was a member of an association or its Executive Committee, which association is or has Abdul Srbooh/* (D.B,) Hon'blc Ntr. Justice Muhammad Neeem Anwar Hon'ble Mr. Justice Ntuhammad !jaz Khan

been declared to be unlawful under any law for the time being in force in the Province at any time during the period of seven days immediately before it was so declared to be unlawful, or remains or becomes a member of such an association or is on the Executive Committee thereof after it has been so declared to be unlawful shall be deemed to be acting in a manner prejudicial to the public safety and the maintenance of public order for the purposes of this section,

(2)If a District Masistrate or any other servant of Government authorized in this behalf by a general or special order of Government, has reason to believe that any person within his territorial iurisdiction has acted, is actins or is about to act in a manner preiudicial to public safety or the maintenance of n ublic order he shall forthwith refer the matter to Government for orders.

(s)

(5 a) No nerson shall detained for a p eriod exceedins three months unless the Board has reported, before the expiration of the said period of three months, that there is, in its opinion, sufficient cause for such detention.

(5 h) Where a Derson is to be detained for a period ex ceedins three m onth Government $dL before the expiration of the said eriod of thr months refe r his case to the Board.

161 Where a detention order has been made under this secti on the autho rity makins the order sh as soon as ma vbeco mmunicate to su ch oerson the sroun s on whi the '2 order been m inform him that he is at libe rtv to ma keare D resentation to Government a sainst the o rd er and afford him the earlie st opportu nitv of doing so (7) So lo as there i in fo tn res e f any Derson an order under this section direc n that he be de ned he shall be liable to be detaine d in such custodv and under uch con itions as maln nance Abdul Sabooh/* (D.B,) Hon'ble Nlr. Justice Muhammad tton'ble Mr. Justice Muhammrd Ijaz Khan

discipline and punishment for offences and breaches of discipline as Government may from time to time prescribe by general or special order."

According to its preamble, the MPO

aims at amending and consolidating the law relating to preventive detention and control of persons and publication connected with maintenance of public order 1n former West Pakistan. According to Section 3(1), Govemment may on being satisfied, order preventive detention of a person: firstly, who acts prejudicially to public safety or maintenance of public order; and secondl who deals with black market under the 1948 hoarding and black market law; third, involved in smuggling punishable under the 1878 sea custom law or the 1924 land custom law; and, fourth, one who is or was a member of an association or its Executive Committee, having been declared to be unlawful under the law for the time being in force and he remains or becomes a q.

(l member of such an association thereafter. Section 3

(2)empowers the Govemment or the District Magistrate, empowered by the Government, to order the arrest and detention of such person about whom he reason to believe that the act of such a Ahdul Sabooh/* (D,8.) Hon'ble Ntr. Justice Mu hammad Naeem Anwar Hon'ble Nlr. Juslice Mnhamm,rd ljaz KhaD

person ls preiudicial to public safety or public order.

5.It is also relevant to mention here that in the present case, the petitioner has been arrested and detained for the reason that he is involved in drugs peddling/sale, smuggling and transportation of drugs. Whether character of the petitioner would be an act, which could qualify the essential ingredients for constituting a ground to press into service Section 3 ofOrdinance, 1960, which speaks that any person who IS acting in any manner prejudicial to the public safety or the maintenance of public order? Such character of the petitioner could not constitute the essential ingredients of public safety or public maintenance, which are sine qua non for issuance of an order of preventive detention, therefore by applying a plain meaning, the allegation so levelled could not be sufficient to justifu the arrest and detention of the petitioner. a,

6 It is also relevant to mention here that The Khvber Pakhtunkhwa Control of Narcotic Substances Act, 2019 and The Prohibition (Enforcement of Hadd) Order, 1979 are exhaustive laws, which provide a complete and comprehensive mechanism for the trial of those offenders, who are Abdul Sabooh/* (D.8.) Hon'ble Ur. Justice Muhammad Naeem Annar Hon'ble \lr. Juslice lluhemmad ljaz Khan

involved in business of narcotic. In this view of the matter, the alleged character/act of the petitioner is govemed by the special law where proper FIRs have also been registered against him.

7 Similarly, in the recent past, Section 3 of Ordinance, 1960 was also pressed into service against the drug peddler like the present petitioner as such accused were arrested by the local administration and sent them to jail, when this case came up before this Courl in the case of Anwar Ali vs. District Masistrate D ir Unner and 8 others reported as PW, it was held therein that in the case in hand the allegation against the petitioner has been that he had been selling drugs to the people and his dealing in such business had been found prejudicial to public safety and order. No allegations of smuggling have been mentioned in the order of detention of the petitioner issued under section 3 of MPO. In the cases in ,ry hand, we also found that the alleged act of the petitioner had got no nexus with the purpose and object of the MPO. If the govemment wanted to deal with him they had at their disposal a robust legal regime in the form of The Khyber Pakhtunkhwa Control of Narcotic Substances Act, Abdul Sabooh/* (D.B) Hon'ble N{r. Justice Muhammad Naeem Anwar Ito['ble Nlr. Jus(ice Nluhemmad ljaz Khan

2019 and The Prohibition (Enforcement of Hadd) Order, 1979 wherein the legislature has taken care to deal with all aspects of the business in trade of narcotics. The petitioner even if found to have been dealing with any such business of selling narcotics, may have been dealt with under the provisions of said law. Recourse to the provision of section 3 MPO was not at all justified in the circumstances of the case.

8 It is also relevant to mention here that whether any act cognizable and triable by the special/criminal law like in the case of petitioner, could be a valid ground for the preventive detention of the petitioner, which is in our considered view would not as where a complete and comprehensive mechanism for the trial of those offenders have been provided, then in such state ofaffair, it would not be open to the District Administration to also use such charges asa ground for preventive ry detention under Ordinance, 1960 and therefore, this Court too concludes that it is an improper and unreasonable exercise of the powers to issue order of preventive detention.

9 For what has been discussed above,

the instant writ petition is allowed, the impugned .\bdul Sabooh/* (D.8.) tlon'ble Ntr. Justice Nluhsmmed Naccm Anwar Hon'blc Ntr. Justice Nluhammsd ljaz Khan

order of respondent No. 2 dated 23.11.2022 is set aside as the same is found by us to be against the preamble, spirit, scope and object of Section 3 of The West Pakistan Maintenance of Public Order Ordinance, 1960 and the petitioner is directed to be released forthwith, ifnot required in any other case.

Announced Dt: 08.12.2022

JUDGE

I

JUDGE

"ry-lt"

Anwar Abdul Sabooh/* ib,B.) Hon'ble Mr. Justice Muhsmmad Naccm Hon'ble Mr. Justice Muhemmed Ijaz Khan